Protest that
agency improperly rejected the protester’s final proposal revision (FPR) as
late is denied where the record confirms that the FPR was received by e‑mail
after the closing time for receipt of FPRs, and agency properly determined that
no exception would permit evaluation of the late FPR.

DECISION

Urban
Title, LLC, of Dallas, Texas, a small business, protests the award of two
contracts to Brendan Gowing Inc. (Gowing) of Houston, Texas, and Luna &
Luna, LLP of Garland, Texas, by the Department of Housing and Urban
Development (HUD) under request for proposals (RFP) Nos. R-DEN-02218 and
R-DEN-02219 for closing agent services. Urban
Title argues that its final proposal revision (FPR) was improperly rejected as
late, and that the agency improperly used concerns about Urban Title’s ongoing
performance of the incumbent contract to downgrade its past performance without
raising those concerns during discussions.

We deny the protest.

BACKGROUND

HUD issued the RFP on October
11, 2007, seeking proposals to provide real
estate closing agent services for single-family properties in certain counties
in Texas.[1] The RFP was set aside for small
businesses. After completing the initial
evaluation, HUD selected Urban Title and Gowing for award on the basis of their
initial proposals and awarded those contracts on March 5, 2008. One of the unsuccessful offerors,
Julius L. Thompson, P.C. (Thompson), protested those awards to our
Office. Urban Title continued to perform
its contract after HUD notified our Office that it would stay the contract
awarded to Gowing, but had executed a determination to override the stay of
performance of the contract with Urban Title.

Later, HUD announced that it
would take corrective action in response to Thompson’s protest by conducting
discussions with all offerors (including Thompson and the awardees), requesting
revised proposals, and making a new source selection decision. Our Office dismissed Thompson’s protest on
the basis that the corrective action rendered the protest of the awards
academic. Julius L. Thompson, P.C.,
B-311437, May 2, 2008.

Between April 15 and June 30, at
least 22 instances of what HUD regards as inadequate performance by Urban Title
of the ongoing contract had occurred.
However the record does not suggest that Urban Title was aware that its
performance was regarded as deficient by HUD at that time.

On June 30, the contracting
officer (CO) sent a letter by e-mail to each offeror, providing specific
discussions questions. The only issue
raised with Urban Title was a request that it move its key personnel resumes to
a different section of its proposal. No
concerns about Urban Title’s performance of the incumbent contract were
mentioned.[2]

Each of
the discussions letters concluded as follows:

You are required to submit your FPR no later than 5:00
PM, MDT [Mountain Daylight Time], on Wednesday, July 9, 2008. . . . Please submit the FPR via email to
[contracting specialist’s e-mail address].
Any late FPR will be subject to the rules spelled out at FAR [Federal
Acquisition Regulation] 52.215-1, Instructions to Offerors--Competitive
Acquisition. You may contact [the
contracting specialist] or myself at [phone number] if you have any questions.

Protest exh. 1, Letter from CO
to Urban Title, at 1-2.

Urban Title submitted its FPR
twice by separate e-mails to the address of the contracting specialist on July
9. Urban Title sent the first e-mail at
4:48 p.m. MDT (or 12 minutes before the closing time), and it sent the second
e-mail at 5:01 p.m. MDT (or 1 minute after the closing time).

Neither e-mail from Urban Title
was received by HUD before the deadline.
The contracting specialist received the second of the two e-mails from
Urban Title at 5:02 p.m. MDT on July 9 (or 2 minutes late). Declaration of Contracting Specialist
at 1. As explained further below,
the first e-mail did not arrive until several weeks later.

HUD determined that Urban
Title’s FPR had been received 2 minutes late, and therefore it could not be
evaluated. Nevertheless, HUD decided to
reevaluate Urban Title’s initial proposal, and to evaluate the timely FPRs from
other offerors. In conducting the
reevaluation, HUD considered as past performance information the ongoing
performance by Urban Title under the original contract. That additional past performance information
led HUD to downgrade Urban Title under the past performance factor. On August 21, after completing the
evaluation, HUD notified Urban Title that its proposal was not selected, and instead
Gowing and Luna & Luna had been selected for award. Letter from Contracting Officer to Urban
Title, Aug. 21, 2008, at 1.

At the time that the new awards
were announced, the first e‑mail from Urban Title still had not
arrived. However, later the same
evening, the first e-mail from Urban Title (originally sent on July 9 at 4:48
p.m. MDT) finally arrived. Specifically,
the Contracting Specialist states that on the morning of August 22 his e-mail
inbox contained an e-mail from Urban Title that had arrived
at 8:52 p.m. MDT the previous evening (August 21). Declaration of Contracting Specialist
at 2 & exh. 3 (screen shot of inbox).

After HUD announced the new
awards, Urban Title filed this protest.

DISCUSSION

Urban Title argues that its FPR
was not late, and even if the FPR was late, the agency misevaluated the firm’s
past performance by improperly considering adverse performance information
without giving Urban Title an opportunity to address the agency’s
concerns.

With respect to the first issue,
we find that HUD correctly concluded that Urban Title’s FPR was late. As explained above, both of Urban Title’s
attempts to submit its FPR were received after the time specified by the agency
for receipt of FPRs. Although Urban
Title objects that the agency has provided no explanation of the anomaly that
resulted in the apparent delay of the protester’s first e-mail for
5 weeks, the protester does not dispute that it occurred, and the
contracting specialist has provided the facts in a sworn declaration to our
Office.

HUD argues that the only
exception for a late proposal revision received by electronic means is found in
FAR sect. 52.215-1(c)(3)(ii)(A), which could only apply if Urban Title’s
electronic submission had reached the “initial point of entry to the Government
infrastructure” by 5 p.m. a day before the due date. HUD points out that Urban Title confirms that
its FPR submissions were sent on the due date (not a day early), and thus the
exception is unavailable.

Urban Title argues HUD elected
to limit offerors to submitting FPRs only by e-mail, and that by doing so, HUD
was obliged to ensure that its e-mail system was reasonably reliable. In Urban Title’s view, the facts here suggest
that HUD failed in meeting that duty.

In our view, the protester’s
argument is foreclosed by the specific treatment of the issue in FAR
sect. 52.215-1(c)(3)(ii)(A). SeeSea Box, Inc., B-291056, Oct. 31, 2002, 2002 CPD para. 181 at 3
(other exception necessarily applies only to proposals not delivered by
electronic means). Moreover, any
objection to HUD’s decision to specify that FPRs be submitted by e-mail is an
allegation of a patent solicitation defect,[3]
which is therefore untimely when raised for the first time now, after award.[4] 4 C.F.R. sect. 21.2(a)(1) (2008). Accordingly, Urban Title’s protest to the
treatment of its FPR as late is denied.

Finally, Urban Title argues that
since HUD reevaluated the protester’s initial proposal, and in particular,
lowered its past performance evaluation based on concerns about the company’s
ongoing performance, it was improper for HUD to fail to raise its concerns
during discussions prior to the request for FPRs. In our view, we cannot see how Urban Title
was prejudiced by any errors it claims the agency made.

Specifically, even if HUD had
advised Urban Title during discussions of the agency’s concerns about Urban
Title’s ongoing performance, the protester’s response would have been submitted
in its FPR. Since, as explained above,
the protester’s FPR was received late and was properly not considered, Urban
Title, under the unique circumstances present here, cannot reasonably claim to
have been prejudiced by the agency’s failure to raise these issues during
discussions--although, for the record, we need not, and do not, reach the issue
of whether such discussions were required.
Instead, we simply note that if they had been provided, they would not
have saved Urban Title from its later failure to submit a timely FPR. See, e.g., McDonald-Bradley,
B‑270126, Feb. 8, 1996, 96‑1 CPD para. 54 at 3; Statistica,
Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).

The protest is denied.

Gary L. Kepplinger
General Counsel

[1]
Although issued as two separate solicitations, there is no dispute on the
record here that there was essentially one competition; each offeror submitted
a single proposal, with the expectation HUD would award contracts to two
offerors on the same basis. The RFP
described the resulting contracts as requirements contracts, and explained that
orders would be distributed between the two contractors. For the sake of simplicity, we will refer to
the RFP in the singular.

[2]
HUD subsequently issued a cure notice dated September 23, which when combined
with Urban Title’s response permitted our Office to identify the dates of most
of the performance problems. In short,
although the record is not exhaustive, we accept the protester’s premise that
enough performance problems (in HUD’s view) had occurred by the time that
discussions were opened that HUD could have raised its concerns during
discussions. However, we note that it
has not been necessary for our Office to consider the merits of the cure notice
or Urban Title’s response; rather, for purposes of our analysis, we will assume
that Urban Title’s explanations are valid and would have allayed the
evaluators’ concerns.

[3]
Although the FPR submission instructions were apparently not included as a
formal amendment to the RFP, they were provided to each offeror along with its
discussions issues, and therefore we conclude that the timeliness standards
applicable to solicitation defects apply here.

[4]
Neither are we persuaded by the protester’s argument that its FPR should be
considered to be a late government-favorable revision to an
“otherwise-successful” proposal. Urban
Title bases this argument on the fact that it had received an award in the
initial round of the competition. As
such, Urban Title contends that its FPR merely lowered its prices and made no
other substantive changes to the initial proposal. Even if true, we agree with HUD that this
exception is unavailable because Urban Title’s initial proposal was not
“otherwise successful” after the evaluation of FPRs.